MA ORTEGA-PEREZ V. ERIC HOLDER, JR., No. 09-73220 (9th Cir. 2012)

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FILED DEC 07 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MA ISABEL ORTEGA-PEREZ, No. 09-73220 Agency No. A075-495-126 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 5, 2012** Pasadena, California Before: BERZON and IKUTA, Circuit Judges, and ZIPPS, District Judge.*** Ma Isabel Ortega-Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals order dismissing her appeal of an * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jennifer G. Zipps, District Judge for the U.S. District Court for the District of Arizona, sitting by designation. immigration judge s denial of her motion to reopen removal proceedings conducted in absentia based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) (allowing for judicial review where motion to reopen contains a constitutional claim or a question of law). We review the denial of a motion to reopen for abuse of discretion, Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir. 2007), and we deny the petition for review. The agency did not abuse its discretion in denying Ortega-Perez s motion to reopen as untimely because the motion was filed more than nine years after the issuance of the September 8, 1998 in absentia order, see 8 C.F.R. § 1003.23(b)(4)(ii), and Ortega-Perez failed to establish that she acted with the due diligence required to warrant equitable tolling of the 180-day filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available to petitioner who is prevented from filing because of deception, fraud, or error and exercises due diligence in discovering such circumstances). PETITION FOR REVIEW DENIED. 2

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